United States District Court, E.D. Wisconsin
TERRY S. SHANNON, Petitioner,
WILLIAM J. POLLARD, Respondent.
Stadtmueller U.S. District Judge.
noted in prior orders, this case has been under a stay and
abeyance for several years, during which time Petitioner
Terry Shannon (“Shannon”) has sought to exhaust
his state-court remedies with respect to the claims raised in
his habeas petition. (Docket #25). Having received the
relevant decision from the Wisconsin Court of Appeals with
respect to Shannon's recent postconviction motion,
see (Docket #26),  the Court will now turn to
screening the petition under Rule 4 of the Rules Governing
Section 2254 Proceedings.
Rule authorizes a district court to conduct an initial
screening of habeas corpus petitions and to dismiss a
petition summarily where “it plainly appears from the
face of the petition. . .that the petitioner is not entitled
to relief.” This Rule provides the district court the
power to dismiss both those petitions that do not state a
claim upon which relief may be granted and those petitions
that are factually frivolous. See Small v. Endicott,
998 F.2d 411, 414 (7th Cir. 1993). Under Rule 4, the Court
analyzes preliminary obstacles to review, such as whether the
petitioner has complied with the statute of limitations,
exhausted available state remedies, avoided procedural
default, and set forth cognizable claims.
case arises from a gun battle involving Shannon and his
brother on one side and members of a rival gang, including
Bennie Smith (“Smith”), on the other. The
Shannons drove up alongside a car occupied by Smith and his
companions, and the firing began. At the end of the melee,
Smith was dead.
2010, Shannon was sentenced in Racine County Circuit Court to
serve life imprisonment without the possibility of parole
after a jury convicted him of first degree intentional
homicide while armed, in violation of Wis.Stat. §
940.01, and discharging a firearm from a vehicle, in
violation of Wis.Stat. § 941.20(3)(a), both as party to
a crime. He appealed two issues: (1) did the State violate
its discovery obligations under Wis.Stat. §
971.23(1)(e), when it failed to disclose the medical
examiner's opinion that Smith's fatal gunshot wounds
were “atypical, ” meaning they had passed through
something before they hit him; and (2) should certain
firearms, ammunition, and drugs found at several Shannon
residences have been excluded at trial as improper other-acts
evidence. The conviction was affirmed, and the Wisconsin
Supreme Court denied the request for discretionary review.
Shannon did not seek certiorari to the United States Supreme
August 11, 2014, Shannon filed the instant petition. In it,
he raises four grounds for relief. First, he argues that the
trial court did not properly instruct the jury that the
absence of self-defense must be proved by the State, which
violated his right to due process of law. (Docket #1 at 6-7).
Second, Shannon claims he was provided ineffective assistance
of trial and appellate counsel, since none of his lawyers
investigated his co-defendant, his mother, or his
daughter's mother, all of whom allegedly had exculpatory
evidence supporting his claim of self-defense. Id.
at 7. Trial counsel also committed a host of other errors,
including failing to advise him regarding the admissibility
of Smith's history of violent acts under McMorris v.
State, 205 N.W.2d 559 (1973), failing to proffer proper
jury instructions regarding self-defense, failing to
investigate the crime scene and physical evidence, failing to
file a motion under Brady v. Maryland, 373 U.S. 83
(1963), which requested exculpatory and impeachment evidence,
and failing to hire a ballistics expert to rebut the
State's expert. See Id. at 7-8. Appellate
counsel purportedly erred by raising none of these points
during direct appeal. Id. at 8.
Shannon says he did not validly waive his right to testify at
trial due to the ineffective assistance of his trial counsel.
Id. at 8. In this ground, which overlaps with ground
two, Shannon contends that under McMorris, he should
have testified at trial regarding evidence of violent acts
the victim had committed which he knew about at the time of
the alleged crime, and which would bear on the reasonableness
of the claim of self-defense. See State v. McClaren,
767 N.W.2d 550, 552 (Wis. 2009). He did not do so because his
counsel failed to advise him concerning the value of such
testimony. (Docket #1 at 8).
Shannon asserts in ground four that the State violated his
due-process rights by withholding Brady
evidence-that is, material and exculpatory evidence-in the
form of a medical examiner's autopsy report, which
contained a statement that Smith's fatal would was
“atypical.” Id. at 9. This statement, if
disclosed, would have been used to show that Smith's
fellow passengers may have fired the fatal shot, not one of
the Shannons. See id.
Court will first consider the timeliness of the petition. A
state prisoner in custody pursuant to a state court judgment
has one year from the date “the judgment became
final” to seek federal habeas relief. 28 U.S.C. §
2244(d)(1)(A). A judgment becomes final within the meaning of
Section 2244(d)(1)(A) when all direct appeals in the state
courts are concluded followed by either the completion or
denial of certiorari proceedings in the U.S. Supreme Court,
or if certiorari is not sought, at the expiration of the
ninety days allowed for filing for certiorari. See Ray v.
Clements, 700 F.3d 993, 1003 (7th Cir. 2012).
it appears the petition is timely. Shannon's direct
appeal concluded on May 13, 2013, and he did not seek
certiorari to the Supreme Court. Thus, his time to file
habeas petition began to run on August 11, 2013. This
petition was filed exactly one year later, on August 11,
2014. Consequently, it appears to have been timely filed.
Court continues its Rule 4 review by examining Shannon's
petition to determine whether he has exhausted his state
remedies. The district court may not address the merits of
the constitutional claims raised in a federal habeas petition
“unless the state courts have had a full and fair
opportunity to review them.” Farrell v. Lane,
939 F.2d 409, 410 (7th Cir. 1991). Accordingly, a state
prisoner is required to exhaust the remedies available in
state court before a district court will consider the merits
of a federal habeas petition. 28 U.S.C. § 2254(b)(1)(A);
Dressler v. McCaughtry, 238 F.3d 908, 912 (7th Cir.
2001) (if petitioner “either failed to exhaust all
available state remedies or raise all claims before the state
courts, his petition must be denied without considering its
merits”). A petitioner exhausts his constitutional
claim when he presents it to the highest state court for a
ruling on the merits. Lieberman v. Thomas, 505 F.3d
665, 669 (7th Cir. 2007) (citing Picard v. Connor,
404 U.S. 270, 275 (1971)); Perruquet v. Briley, 390
F.3d 505, 513 (7th Cir. 2004). Once the state's highest
court has had a full and fair opportunity to pass upon the
merits of the claim, a prisoner is not required to present it
again to the state courts. Humphrey v. Cady, 405
U.S. 504, 516 n.18 (1972).
some of Shannon's claims remain unexhausted despite the
Court having afforded him three years of stay and
abeyance. The Court will address each ground in
turn. In his first ground for relief, Shannon contends that
the jury should have been instructed that the absence of
self-defense was an element of his crime. This claim was
presented in a postconviction motion to the Wisconsin Court
of Appeals during the stay and abeyance, and the court
rejected it. Shannon, 895 N.W.2d 103');">895 N.W.2d 103, 2016 WL
7177463, at *3-4. The Wisconsin Supreme Court thereafter
denied discretionary review, State v. Shannon, 898
N.W.2d 583 (2017), and so the claim is fully exhausted.
second ground for relief has some exhausted and some
unexhausted portions. The claim is framed as one for
ineffective assistance of trial and appellate counsel, which
has been exhausted as a general matter. See Shannon,
895 N.W.2d 103');">895 N.W.2d 103, 2016 WL 7177463, at *3-4. But Shannon's
litany of complaints about his lawyers includes some specific
issues which were never presented to any state court. Among
them are failing to investigate allegedly exculpatory
statements by his brother, mother, and others, failing to
investigate the crime scene, erroneous advice concerning
other-acts evidence and Shannon's right to testify as it
affected his claim of self-defense under McMorris,
and failing to hire a ballistics expert. See (Docket
#1 at 7-8).
issues were never mentioned below, and Shannon apparently
made no effort to raise them during the stay and abeyance
despite representations that he would do so. See Id.
at 8; Shannon, 895 N.W.2d 103');">895 N.W.2d 103, 2016 WL 7177463, at
*3-4. The time for seeking exhaustion is now over, and these
portions of his second ground for relief may not proceed.
Thus, the only portions of ground two that can proceed are
ineffective assistance of trial and ...